Linda Kelly Hill, The Feminist Misspeak of Sexual Harassment

INTRODUCTION:: Feminism is out of control. I recently attended an academic conference on domestic violence where, as usual, the speakers and the audience were virtually all women. As is to be expected, one woman or another lamented the lack of male interest in matters affecting both sexes. Finally, a well-regarded male academic spoke up. However, he did not offer a fresh perspective. Despite his years of research and scholarship in the field, he cautioned that any comments he made must be considered with great skepticism because of his sex. He apologized for being a man.

With a feminist narrative flourish, such a vignette illustrates that feminism does more than shape and control the debate on gender issues. Feminism silences the debate. No other theories can legitimately address issues identified as “feminist.” Feminism is a tautological success story. Feminism defines the issues. Feminism limits the terms. Feminism dictates the outcomes.

Yet despite feminism’s hegemonic strength, feminist theory is on the brink of self-annihilation. After waves of liberal, radical, and cultural feminism, we are now riding a “third wave” of feminism that risks crashing into nothingness. The permutations of feminist legal theory have proliferated to the point of endangering feminism’s existence. “Anti-essentialist reader[s],” half-finished manifestos, “multiplicative” identity analyses, intersectionality, erotica theory, even the hint of a return to liberalism all are welcomed.

Yet if feminist theory has reached an amorphous, nearly extinct state, how does it continue to command attention? What remains at the feminist core? What issues does feminism control? How has feminism distorted our understanding of such issues? Who has been harmed by the distortion?

This Article tackles such questions in the context of sexual harassment law and theory. Nearly twenty years ago, the Supreme Court endorsed the feminist definition of sexual harassment in the landmark case of Meritor Savings Bank, FSB v. Vinson. Accepting Catharine MacKinnon’s design, the Court recognized that sexual harassment occurs not only when the conduct threatens a tangible employment benefit but also when such conduct creates a “hostile working environment” because of a person’s sex. Meritor raised the sexual harassment claim of a woman in the “quintessential” male aggressor and female victim fact pattern. Yet opposite-sex cases involving male victims and female aggressors, as well as same-sex cases involving either sex, also exist. Today, these nontraditional cases remain unduly challenged by the control feminist theory continues to wield. Feminism defines sexual harassment. Feminism limits the players. Feminism dictates the victors.

The Feminist Misspeak of Sexual Harassment undoes the circle of sexual harassment law and theory. After observing the general trends in feminist theory and the movement’s current, potentially self-destructive state in Part I, Part II compares the more particular feminist shape of sexual harassment law. In combination with Part III’s examination of recent feminist theory in the sexual harassment area, it makes clear that feminism remains alive and influential as a matter of law and theory. Despite strong postmodern efforts at the highest meta level of theory, feminism cannot abandon its patriarchal core. Notwithstanding the infinite differences between women, feminism maintains that all women are controlled by men. Sexual harassment law and theory is grounded in this basic feminist tenet. Sexual harassment’s two critical elements of causation and severity continue to be distorted by the feminist misspeak. Parts IV and V evidence such distortion by respectively reviewing the treatment of causation and severity in law and theory. As Part VI recognizes, feminism challenges men in both the opposite-sex and same-sex context. Yet women are also injured. In the interest of women and men, Part VII urges the recognition and elimination of the feminist misspeak of sexual harassment.